United States v. Saul Beltran

MEMORANDUM

Saul Beltran appeals from a 48-month sentence imposed pursuant to his guilty plea to illegal reentry by a deported alien under 8 U.S.C. § 1826 (a). Beltran contends that the district court erroneously applied a sixteen-level “crime of violence” enhancement under U.S.S.G. § 2L1.2(b)(l)(A) based on Beltran’s 2001 Nevada conviction of attempted burglary. We remand.

We apply the modified categorical approach to determine whether Beltran’s 2001 conviction “necessarily rested” on facts satisfying the elements of generic burglary, including the requirement of an “unlawful or unprivileged” entry. United States v. Aguila-Montes de Oca, 655 F.3d 915, 940, 941 (9th Cir.2011) (en banc). The district court had before it two documents from the Nevada conviction. The Judgment of Conviction stated that Beltran pleaded guilty to the statutory definition of attempted burglary. Nevada burglary does not require an “unlawful or unprivileged” entry. See, e.g., Stephans v. State, 262 P.3d 727, 729 (Nev.2011) (upholding burglary conviction for shoplifting); Hernandez v. State, 118 Nev. 513 , 50 P.3d 1100, 1113 (2002). Because the Judgment of Conviction did not indicate that Beltran pleaded…